State v. Townsend , 99 N.C. App. 534 ( 1990 )

393 S.E.2d 551 (1990) 99 N.C. App. 534

STATE of North Carolina
v.
Michael TOWNSEND.

No. 8912SC1167.

Court of Appeals of North Carolina.

July 17, 1990.

Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. P. Bly Hall, Raleigh, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

WELLS, Judge.

Defendant brings forward five assignments of error challenging the trial court's admission of certain hearsay testimony, the trial court's refusal to give requested jury instructions, and a variance between the jury's verdict and the judgment entered thereon respecting the charge of feloniously maintaining a dwelling house for the keeping and selling of controlled substances. We find no error in the trial, but we remand the judgment for correction to make it consistent with the verdict.

By his first argument, defendant challenges the trial court's admitting testimony of Agent John Ridgen of the Cumberland County Sheriff's Department that he was able to verify, by contacting Carolina Telephone and Telegraph Company, that a phone number provided to him by defendant belonged to a telephone located at the housetrailer and listed in defendant's name. Defendant contends that this testimony was impermissible hearsay, not within a hearsay exception, which prejudiced him by improperly establishing a nexus between defendant, the drugs, and the trailer used to keep and sell the drugs. We need not, however, reach this question, for we conclude that defendant has waived the benefit of his objection.

The settled law of this State, unchanged by the adoption of the North Carolina Rules of Evidence, is that "[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Brooks, 83 N.C.App. 179, 349 S.E.2d 630 (1986) (quoting State v. Whitley, 311 N.C. 656, 319 S.E.2d 584 (1984)). Under the equally well established exception to the waiver rule, a timely objection is not waived when the objecting party later offers evidence "for the purpose of impeaching the credibility or establishing the incompetency of the testimony in question." State v. Wills, 293 N.C. 546, 240 S.E.2d 328 (1977) (quoting State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766 (1961)). Nevertheless, an objection will not be preserved under this exception where the subsequent offer by the objecting party "simply produc[es] the same and additional evidence of the facts that had already been testified to over his objection." Id.; see generally 1 Brandis on North Carolina Evidence (3d ed.) § 30.

The record indicates that although defendant seasonably objected to Agent Ridgen's testimony and made a motion to strike, defendant later took the stand and testified on direct examination that he ordered the telephone to be placed at the trailer and listed in his name. It is true that defendant further testified that, in so doing, he acted at the behest of Flora Strickland and Larry Ray. Such testimony does not, however, bring defendant within the exception to the waiver rule. A defendant is not permitted, as a means of avoiding the application of the waiver rule, to take the stand, testify to the same facts shown by the objectionable evidence, "and from that point embark upon whatever testimonial excursion he may choose to offer as justification for his conduct." State v. Wills, supra, (quoting State v. McDaniel, 274 N.C. 574, 164 S.E.2d 469 (1968)). Defendant himself testified to the identical facts admitted over his objection establishing the nexus between defendant, the drugs, and the trailer. No attempt was made by defendant to attack either the credibility or competency of Agent Ridgen's testimony. The benefit of defendant's objection to that testimony is therefore waived.

Defendant next brings forward three assignments of error challenging the trial court's refusal to give certain requested jury instructions. Because the resolution of the merits of these assignments of error turns on but a single issue, we consolidate them for purposes of our discussion.

Defendant requested instructions that guilt could not be inferred from his mere presence at the scene; that the number of witnesses called and amount of evidence introduced is not determinative of guilt; and that the testimony of a law enforcement officer is not necessarily deserving of more consideration or greater weight. He contends, either outright or implicitly, that the trial court did not give these instructions in substance. We disagree.

It is well established that if a request is made for a specific instruction which is correct in law and supported by the evidence, the trial judge must give the instruction. State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976); see also State v. Paige, 316 N.C. 630, 343 S.E.2d 848 (1986). It is equally well established, however, that the trial court is not required to give a requested instruction in the exact language of the request, so long as the instruction is given in substance. Id.

With respect to defendant's request for an instruction on "mere presence," the record shows that the trial court instructed the jury that in order to convict, it had to find beyond a reasonable doubt that defendant, "acting either by himself or acting together with other persons did possess cocaine and marijuana for the purpose of delivery and sale, and did operate a dwelling house for the purpose of selling the illegal substance[.]" With respect to the remaining instructions requested by defendant, the record discloses that the trial court gave the pattern instructions pertaining to the weight of the evidence and credibility of the witnesses. The instructions given by the trial court, considered as a whole, sufficiently state the substance of defendant's requested instructions to comport with the above requirements. The trial court therefore did not err in declining to give the instructions requested by defendant.

Finally, defendant argues that the judgment must be remanded for correction to make it consistent with the verdict rendered. The record reflects that defendant was charged pursuant to G.S. § 90-108(a)(7). That statute makes it unlawful for any person "[t]o knowingly keep or maintain any ... dwelling house ... which is used for the keeping and selling of [controlled substances]." G.S. § 90-108(b) further provides that:

Any person who violates this section shall be guilty of a misdemeanor. Provided, that if the criminal pleading alleges that the violation was committed intentionally, and upon trial it is specifically found that the violation was committed intentionally, such violations shall be a Class I felony. (Emphasis added.)

The indictment charging defendant with a violation of G.S. § 90-108(a)(7) alleged that such violation was committed intentionally. The verdict returned by the jury, however, did not specifically find that the violation was committed intentionally. By the plain language of the statute, defendant is therefore guilty of a misdemeanor pursuant to his conviction on this charge. Nevertheless, the judgment entered reflects a conviction for a felony. Where a verdict is returned convicting a defendant of a misdemeanor, but the judgment incorrectly reflects a conviction for a felony, the case must be remanded "to correct the judgment and make it consistent with the verdict." State v. Durham, 74 N.C.App. 121, 327 S.E.2d 312 (1985) (citing State v. Williams, 31 N.C.App. 111, 228 S.E.2d 668, disc. rev. denied, 291 N.C. 450, 230 S.E.2d 767 (1976)). This case must therefore be remanded to the Cumberland County Superior Court to correct the judgment and make it consistent with the verdict.

No error in the trial.

Remanded for correction of judgment.

EAGLES and LEWIS, JJ., concur.